[Federal Register Volume 59, Number 210 (Tuesday, November 1, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-27032]


[[Page Unknown]]

[Federal Register: November 1, 1994]


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DEPARTMENT OF VETERANS AFFAIRS

 

Summary of Precedent Opinions of the General Counsel

AGENCY: Department of Veterans Affairs.

ACTION: Notice.

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SUMMARY: The Department of Veterans Affairs (VA) is publishing a 
summary of legal interpretations issued by the Department's General 
Counsel involving veterans' benefits under laws administered by VA. 
These interpretations are considered precedential by VA and will be 
followed by VA officials and employees in future claim matters. It is 
being published to provide the public, and, in particular, veterans' 
benefit claimants and their representatives, with notice of VA's 
interpretation regarding the legal matter at issue.

FOR FURTHER INFORMATION CONTACT:
Jane L. Lehman, Chief, Law Library, Department of Veterans Affairs, 810 
Vermont Avenue, NW., Washington, DC 20420, (202) 273-6558.

SUPPLEMENTARY INFORMATION: VA regulations at 38 CFR 2.6(e)(9) and 
14.507 authorize the Department's General Counsel to issue written 
legal opinions having precedential effect in adjudications and appeals 
involving veterans' benefits under laws administered by VA. The General 
Counsel's interpretations on legal matters, contained in such opinions, 
are conclusive as to all VA officials and employees not only in the 
matter at issue but also in future adjudications and appeals, in the 
absence of a change in controlling statute or regulation or a 
superseding written legal opinion of the General Counsel.

    VA publishes summaries of such opinions in order to provide the 
public with notice of those interpretations of the General Counsel 
which must be followed in future benefit matters and to assist 
veterans' benefit claimants and their representatives in the 
prosecution of benefit claims. The full text of such opinions, with 
personal identifiers deleted, may be obtained by contacting the VA 
official named above.
O.G.C. Precedent 10-94

Question Presented

    Does 38 U.S.C. 5110(g), which governs effective dates of awards of 
compensation and pension benefits based on liberalizing laws or 
administrative issues, apply to awards based upon judicial precedents?

Held

    The effective dates of awards of compensation or pension based upon 
judicial precedents alone are governed by 38 U.S.C. Sec. 5110(a) and 
not 38 U.S.C. 5110(g), i.e., the effective dates may generally be no 
earlier than dates of receipt of claims. However, if an award may be 
predicated upon an administrative issue, such as an amendment to a 
regulation, prompted by a judicial precedent, 38 U.S.C. 5110(g) should 
be applied in assigning the effective date if to do so would be to the 
claimant's benefit.

    Effective date: April 25, 1994.
O.G.C. Precedent 11-94

Question Presented

    Are Veterans Benefits Administration officials authorized to deny a 
claimant's request for equitable relief under 38 U.S.C. 503, or must 
such a request be forwarded to the Secretary of Veterans Affairs for 
determination?

Held

    The Secretary of Veterans Affairs has the authority pursuant to 38 
U.S.C. 501(a), 503, and 512(a) to delegate the authority to determine 
that equitable relief is not warranted in a particular case and has 
impliedly delegated that authority by regulation to VA department 
heads, including the Under Secretary for Benefits. In addition, we 
believe the Secretary may authorize the Under Secretary for Benefits to 
subdelegate the authority to deny requests for equitable relief to 
subordinate officials within the Veterans Benefits Administration. 
However, there is no indication that such subdelegation has been 
attempted.

    Effective date: May 2, 1994.
O.G.C. Precedent 12-94
    (a) For purposes of determining entitlement to accrued pension 
benefits under 38 U.S.C. 5121(a), where evidence submitted prior to a 
beneficiary's death provides sufficient basis for prospective 
estimation of unreimbursed medical expenses, may such evidence form the 
basis for an award of accrued benefits only in cases where unreimbursed 
medical expenses were actually deducted prospectively from the deceased 
beneficiary's income for purposes of determining pension entitlement 
during the beneficiary's lifetime?
    (b) What criteria must be met in order to provide a sufficient 
basis for prospective estimation of medical expenses?

Held

    (a) Accrued pension benefits may be allowed under 38 U.S.C. 5121(a) 
on the basis that evidence in the file at the date of a veteran's death 
permitted prospective estimation of unreimbursed medical expenses, 
regardless of whether unreimbursed medical expenses were actually 
deducted prospectively from the veteran's income for purposes of 
determining pension entitlement prior to the veteran's death.
    (b) Where a veteran had in the past supplied evidence of 
unreimbursed medical expenses which, due to the static or ongoing 
nature of the veteran's medical condition, could be expected to be 
incurred in like manner in succeeding years in amounts which, based on 
past experience, were capable of estimation with a reasonable degree of 
accuracy, such evidence may form the basis for a determination that 
evidence in the file at the date of the veteran's death permitted 
prospective estimation of medical expenses. There may be situations in 
which medical expenses may be predicted with a reasonable degree of 
accuracy from evidence in the file at the date of the veteran's death 
on a basis other than the recurring nature of the expenses.

    Effective date: May 2, 1994.
O.G.C. Precedent 13-94
    Whether service connection may be established for a disability 
incurred following the date on which a veteran was, in fact, discharged 
from active military duty, where the discharge was subsequently voided 
and full active-duty credit granted by a Board for Correction of 
Military Records to a date subsequent to the date on which the 
disability was incurred.

Held

    Service connection may not be established for a disability incurred 
following the date on which a veteran was discharged from active 
military duty, although the discharge was subsequently voided and full 
active-duty credit granted by a Board for Correction of Military 
Records to a date after the date on which injury occurred, because the 
veteran was not engaged in active service at that time.

    Effective date: May 9, 1994
O.G.C. Precedent 14-94

Question Presented

    Where a veteran of service in the Regular Philippine Scouts or the 
Philippine Commonwealth Army reports having detained or interned by the 
enemy on a date following the date of termination of the veteran's 
period of active duty as certified by the service department, may VA 
recognize the veteran as having been in a prisoner-of-war (POW) status 
during the period of detention of internment and recognize that period 
as a period of active service under 38 CFR 3.9?

Held

    In determining for veterans' benefit purposes under 38 CFR 3.9 the 
period of active service of a Regular Philippine Scout or a member of 
the Philippine Commonwealth Army while serving with the United States 
Armed Forces, the Department of Veterans Affairs is not bound by a 
service-department certification as to the ending date of the veteran's 
period of active duty. The Department may include a period spent in a 
prisoner-or-war status in determination of the veteran's period of 
active service, if the veteran was detained or interned by the enemy 
``immediately following a period of active duty.'' The phrase 
``immediately following a period of active duty,'' as used in section 
3.9(b), may be construed as referring to an event following closely 
after a period of active duty, directly related to that duty, and 
occurring before the veteran performed activities not related to active 
military duty. The Department is not bound in determining a period of 
active service by a service-department finding of pay entitlement under 
the Missing Persons Act, as amended.

    Effective date: June 8, 1994
O.G.C. Precedent 15-94

Question Presented

    May the Secretary enforce a right to subrogation with respect to a 
guaranteed housing loan on which VA paid a claim if VA failed to 
provide the veteran with notice of a transferee's default?

Held

    Veterans who obtain a VA guaranteed loan have a constitutionally 
protected right to receive notice of a foreclosure proceeding that will 
affect their rights and liabilities. When a third party assumer 
defaults on the loan, VA must notify the original veteran obligor of 
the impending foreclosure, provided VA knows or can reasonably 
ascertain the veteran's address. If VA fails to provide the required 
notice, VA may not collect a debt from the veteran under subrogation, 
unless the private loan holder obtained a personal judgment against the 
veteran prior to VA paying the guaranty claim, or the holder provided 
the veteran with reasonably sufficient notice. The judgment may be 
subject to collateral attack in the VA appeals process if the court 
lacked jurisdiction to render that judgment. VA Form letter 26-251 is 
deemed to satisfy the notice requirement.

    Effective date: June 23, 1994
O.G.C. Precedent 16-94

Questions Presented

    (a) Under CFR 3.458(d), may only certain compensation benefits be 
apportioned to a child of a veteran adopted out of the veteran's 
family, or should this regulation be read to permit apportionment of 
the portion of improved-pension benefits payable to a veteran on the 
basis of the existence of the child?
    (b) Does adoption outside the family divest a veteran of legal 
custody of a child for improved-pension purposes?
    (c) If adoption outside the family does not divest the veteran of 
legal custody of a child, would the child be considered in the custody 
of the veteran for purposes of determining the rate of improved-pension 
payable to the veteran?

Held

    (a) Under 38 CFR 3.458(d), improved-pension benefits generally may 
not be apportioned to a child of the veteran who has been adopted out 
of the veteran's family.
    (b) Under Utah law, adoption of a veteran's child outside the 
veteran's family divests the veteran of legal custody of the child for 
improved-pension purposes.
    (c) In light of the holding in paragraph (b) above, the third 
question presented is moot.

    Effective date: July 1, 1994

    By Direction of the Secretary.
Mary Lou Keener,
General Counsel.
[FR Doc. 94-27032 Filed 10-31-94; 8:45 am]
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